DECIDED: 1, 2003 august
Summary judgment. Fulton Superior Court. Before Judge Longer.
Troutman Sanders, William M. Droze, David M. Green, for appellants.
Thurbert E. Baker, Attorney General, Sidney R. Barrett, Jr., Isaac Byrd, Senior Assistant Attorneys General, Samantha M. Rein, Assistant Attorney General, for appellee.
USA payday advances Advance Centers, American advance loan, Inc., EZ Credit, Inc., Fast money `Til Payday, Inc., Great American advance loan, Inc., Great American Credit, Inc., Monday `Til Payday, Inc., United States Of America wage advance, Inc., United States Of America payday advances Advance Center #8, Inc., United States Of America Payday Cash Advance Center #9, Inc., USA Payday Cash Advance Center #10, Inc., United States Of America cash advance Center #11, Inc., United States Of America cash advance Center #12, Inc., United States Of America cash advance Center #13, Inc., and USA cash advance Center #14, Inc. Brought a declaratory judgment action against John W. Oxedine, indiv motion for summary judgment had been given because of the test court for Oxendine. Finding no mistake, we affirm.
In July of 2002, the Commissioner authorized an study of the loan that is“payday tasks of USA Payday Advance Centers. An administrative „show cause“ order issued, and the plaintiffs were among the parties named in the order as a result of the examination. Following the hearing on October 11, 2002, the Commissioner unearthed that the plaintiffs had been in breach of this Industrial Loan Act in creating loans with no loan that is industrial as well as in making false and misleading advertisments of loans; the Commissioner commanded them to stop and desist from making loans „except as permitted beneath the Georgia Industrial Loan Act. “ Plaintiffs had been charging you a yearly rate of interest of 650%. On October 22, 2002, the superior court denied plaintiffs‘ benefit of your order. On December 2, 2002, plaintiffs dismissed that appeal.
On December 3, 2003, plaintiffs filed this declaratory judgment action and alleged which they not any longer made the loans but that, as „companies“ for County Bank, the loans had been now created by County Bank through them. November 13, 2002, had been the date that is effective such home based business procedure to start. Plaintiffs advertised an exemption through the Georgia Industrial Loan behave as agents when it comes to bank that is out-of-state. Nonetheless, such provider contract, which was alleged into the verified pleadings, had been never placed into proof.
At that time that the declaratory judgment action had been brought, the Commissioner hadn’t decided whether or otherwise not to start a study into plaintiffs‘ start up business arrangement with County Bank, since the Commissioner had no factual statements about the newest arrangement and loans and had taken no position in regards to the brand new procedure.
The Commissioner moved for summary judgment from the grounds that no „actual or justiciable debate“ existed pertaining to plaintiffs‘ brand brand new arrangement with County Bank and that there was in fact no ruling desired on plaintiffs‘ brand new arrangement because of the Commissioner pursuant to their laws allowing needs for declaratory rulings. Consequently, plaintiffs didn’t exhaust its administrative treatments just before looking for action that is judicial.
The Georgia Industrial Loan Act, loans under $3,000 or less come within the ambit of the Act under OCGA § 7-3-1 et seq. „an online payday loan is financing of quick extent, typically fourteen days, at an astronomical yearly interest rate. “ Smith v. Steinkamp, 318 F. 3d 775, 776-777 (7th Cir. 2003). Pay day loans are the existing form of „salary buying“ or „wage buying. “ See Gunnels v. Atlanta Bar Assoc., 191 Ga. 366, 381(3) ( 12 S.E. 2d 602) (1940); Hinton v. Mack Publishing Co., 41 Ga. App. 823, 826 ( 155 INTERNET SEARCH ENGINE 78) (1930). The costs, costs, and interest on an online payday loan are between 15% and 30% of this principal for a loan that is two-week constituting a pretext for usury. Cashback Catalog selling, Inc. V. Cost, 102 F. Supp. 2d 1375, 1380 (S.D. Ga. 2000); see also Greenberg v. Commonwealth, 255 Va. 594 ( 499 S.E. 2d 266) (1998); White v. Check always Holders, Inc., 996 S.W. 2d 496 (Ky. 1999). Because the Georgia Industrial Loan Act had been enacted to „define and avoid usury“ and also to offer a supply of regulated funds „for people who was indeed borrowing at usurious prices from loan sharks, road shylocks and wagebuyers, “ then such transactions that are financial in the jurisdiction of this Act. Consequently, the Industrial Loan Commissioner has jurisdiction over „wage-buyers. “ OCGA § 7-37-1 et seq.; 1954-56 Op. Att’y Gen. At pp. 385-386. Then“payday loans“ violate the Georgia Industrial Loan Act if the maximum interest rate is over the limit set by OCGA § 7-3-14 of 10% or the lender fails to hold an industrial license issued by the Commissioner. See 2002, Op. Att’y Gen. No. 2002-3.
Freeman v. Decatur Loan Finance Corp., 140 Ga. App. 682, 685 ( 231 S.E. 2d 409) (1976).
Some payday lenders have contracted with federally chartered banks or state chartered banks insured by the FDIC to take advantage of federal banking laws that allow such banks to make loans across state lines without regard to that state’s interest and usury laws in „rent-a-charter“ or „rent-a-bank“ contracts in an attempt to circumvent state usury laws. See State of Colorado ex rel. Salazar v. ACE money Express, Inc., 188 F. Supp. 2d 1282, 1285-1286 (D. Colo. 2002); very very Long v. ACE money Exp., 2001 U.S. Dist. Lexis 24617 (M.D. Fla. 2001); Goleta Nat’l Bank v. Lingerfelt, 211 F. Supp. 2d 711 (E.D.N.C. 2002). Whether it has taken place in this instance and if it is genuine or even a simple subterfuge intended to circumvent Georgia usury guidelines can not be reached in this instance, since the plaintiffs did not exhaust administrative treatments also to place the contract with County Bank into proof.
The judicial branch lacks jurisdiction to deal with an executive branch function until there has been an exhaustion of administrative remedies, i.e., the executive branch has no further remedy under the separation of powers under the Georgia Constitution. The precise legislative empowerment for judicial overview of executive action is strictly followed. Perkins v. Dep. Of medical attention, 252 Ga. App. 35, 36-38(1) ( 555 S.E. 2d 500) (2001). The explanation is „resort to your process that is administrative let the agency to make use of its expertise, protect the agency’s autonomy, allow an even more efficient quality, and bring about the consistent application of things in the agency’s jurisdiction. “ Cerulean Co., Inc. V. Tiller, 271 Ga. 65, 67(1) ( 516 S.E. 2d 522) (1999). A plaintiff „is forbidden from doing by indirection that which it really is prohibited from doing straight, i.e. www.installmentloansite.com/, bypassing the fatigue of administrative appeals. “ (Citations omitted. ) Perkins v. Dept. Of medical attention, supra at 38.
Long-standing Georgia law calls for that an event aggrieved by a situation agency’s choice must raise all problems before that agency and exhaust available administrative treatments before looking for any judicial breakdown of the agency’s decision. Provided that there clearly was a fruitful and available remedy that is administrative a celebration is needed to pursue that treatment before searching for equitable relief in superior court.
Cerulean Co., Inc. V. Tiller, supra at p. 66. Therefore,
An action for declaratory judgment will never be amused in which the liberties associated with events have previously accrued as well as the plaintiff faces no threat of using future undirected action. Where a statute provides an event with a way of review by an administrative agency, such procedure is usually a satisfactory treatment at legislation in order to preclude the grant of equitable relief.